R v Mostyn

[2004] NSWCCA 97

Reported Decision: 145 A Crim R 304

New South Wales

Court of Criminal Appeal

CITATION:	R v Mostyn [2004] NSWCCA 97 revised - 16/04/2004
HEARING DATE(S):	16 March 2004
JUDGMENT DATE:	15 April 2004
JUDGMENT OF:	McColl JA at 1; Studdert J at 166; Howie J at 168
DECISION:	1. Appeal against conviction dismissed. 2. Leave to appeal against severity of sentence granted. 3. Sentences imposed for the s 35 and s 33B offences quashed. In respect of the s 35 offence, the appellant is sentenced to imprisonment for a fixed term of 2 years and 10 months, that sentence to commence on 22 December 2002 and expire on 21 October 2005. In respect of the s 33B offence, the appellant is sentenced to imprisonment for 3 years and 3 months, that sentence to commence on 22 September 2004 with a non-parole period of 1 year and 9 months to expire on 21 June 2006, the date upon which the appellant is eligible to be released to parole.
CATCHWORDS:	CRIMINAL LAW - appeal against convictions and sentence - appellant convicted of offences of maliciously inflicting grievous bodily harm: s 35 Crimes Act 1900 (NSW), assault: s 61 Crimes Act - also pleaded guilty to using offensive weapon with intent to prevent lawful apprehension: s 33B Crimes Act - principles governing operation of Criminal Appeal rule 4 - whether trial judge adequately directed jury as to assault - where threat to strike complainant made at distance making contact impossible - sufficiency of evidence as to assault - whether trial judge adequately directed jury as to "maliciously" and "recklessly" - admissibility of evidence - whether tendency evidence - whether relevant to appellant's state of mind - evidence of conduct forming part of a relevant transaction - whether Markuleski direction necessary - no miscarriage of justice - SENTENCING - overall sentence manifestly excessive - offences arising out of single episode of criminality - considerations governing resentencing - relevance of offender spending time in protective custody. (D)
LEGISLATION CITED:	Crimes Act 1900 (NSW) s 33, s 33B, s 35, s 61, s 195(a), s 428B, s 428D(a) Criminal Appeal Act 1912 (NSW) s 6 Criminal Appeal Rules (NSW) r 4 Evidence Act 1995 (NSW) s 55, s 135, s 137
CASES CITED:	Adam v R [1999] NSWCCA 189; (1999) 106 A Crim R 510 Barton v Armstrong [1969] 2 NSWR 451 Bell v R (1985) 63 ALR 433 Coleman v R (1990) 19 NSWLR 467 Harriman v R (1989) 167 CLR 590 Jones v R (1997) 191 CLR 439 Knight v R (1988) 35 A Crim 314 KRM v R (2001) 206 CLR 221 MFA v R [2002] HCA 53; (2002) 77 ALJR 139 O'Leary v R (1946) 73 CLR 566 Pearce v The Queen (1998) 194 CLR 610 Piazza v R (1997) 94 A Crim R 459 R v Abusafiah (1991) 24 NSWLR 531 R v Bond [1906] 2 KB 389 R v Cunningham [1957] 2 QB 396 R v Durocher-Yvon [2003] NSWCCA 299 R v Evans (1950) 34 Cr App Rep 72 R v Grant (2002) 55 NSWLR 80 R v Herbert [1916] VLR 343 R v J (No 2) [1998] 3 VR 602 R v Markuleski (2001) 52 NSWLR 82 R v O'Regan [1961] Qd R 78 R v Player [2000] NSWCCA 123 R v Roberts (2001) 53 NSWLR 138 R v Stones (1955) 56 SR (NSW) 25 R v Totten [2003] NSWCCA 207 R v Yuill (1994) 34 NSWLR 179 Tripodina & Morabito v R (1998) 35 A Crim R 183 Williams v R (1986) 84 Cr App Rep 299 Zanker v Vartzokas (1988) 34 A Crim R 11 Zorad v R (1990) 19 NSWLR 91
PARTIES :	Regina v John Joseph Mostyn
FILE NUMBER(S):	CCA 60418/03
COUNSEL:	D.U. Arnott (Crown) J.C. Papayanni (Appellant)
SOLICITORS:	S. Kavanagh (Crown) C. Jeffries (Appellant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/3314
LOWER COURT JUDICIAL OFFICER :	Hock DCJ

60418/03

McCOLL JA
STUDDERT J
HOWIE J

Thursday, 15 April 2004

REGINA v John Joseph MOSTYN

Judgment

1 McCOLL JA: John Joseph Mostyn appeals against his convictions on 18 March 2003 after a trial in the District Court at Sydney before her Honour Judge Hock and a jury. The appellant was found guilty by the jury of two offences: an offence of maliciously inflicting grievous bodily harm upon Gina-Marie Miner on 24 November 2001 at Kemps Creek contrary to s 35 of the Crimes Act 1900 (NSW) (Count 3) and, secondly, an offence of assaulting Gina-Marie Miner on 24 November 2001 contrary to s 61 of the Crimes Act 1900 (Count 4). Section 35 of the Crimes Act provided for a maximum penalty of imprisonment for seven years. Section 61 provided for a maximum penalty of imprisonment for two years. The appellant was sentenced on 6 June 2003. He also seeks leave to appeal against the sentences.

2 The offences of which the appellant was convicted arose from a chain of incidents alleged to have occurred on the appellant’s rural property at Kemps Creek on 24 November 2001. Prior to the jury being empanelled the appellant pleaded guilty to a charge related to the last of those incidents, being an offence of using an offensive weapon (a .22 calibre rifle) with intent to prevent his lawful apprehension contrary to s 33B of the Crimes Act. Section 33B provides for a maximum penalty of imprisonment for twelve years.

3 The appellant stood for sentence on 6 June 2003 on the two matters in respect of which the jury had convicted him and the one matter in respect of which he had pleaded guilty. On that day he was sentenced as follows:

Count 4: s 61 Crimes Act 1900(NSW)

Ten months imprisonment to commence on 22 June 2002 and expire on 21 April 2003.

Count 3: s 35 Crimes Act 1900 (NSW)

Three years imprisonment to commence on 22 February 2003 and to expire on 21 February 2006. Non-parole period of two years and three months to commence on 22 February 2003 and expire on 21 May 2005.

For the offence of use offensive weapon with intent to avoid apprehension to which the appellant had pleaded guilty on a separate indictment (taking into account Form 1 matters):

Four years imprisonment to commence on 22 February 2005 and to expire on 21 February 2009. Non-parole period of two years and four months to commence on 22 February 2005 and to expire on 21 June 2007.

4 Thus his total sentence was 6 years and 8 months with an effective non-parole period of 5 years dating from 22 June 2002.

5 The grounds of the appeal against the convictions are:

1. Her Honour erred in law in directing and/or failing to direct the jury adequately or properly:

(a) as to assault in Count 4;

(b) as to “recklessly” in Count 3.

2. Her Honour erred in law in failing to direct as to the evidence applicable to:

(a) maliciously in Count 3;

(b) “recklessly” in Count 3.

3. Her Honour erred in law in admitting into evidence the conduct, conversations, statements and threats of the appellant on and after the arrival of the police and in the directions and failure to direct thereon, if admissible.

4. Her Honour erred in law in not directing the jury that where they entertained a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, that must be taken into account in assessing her truthfulness or reliability generally or similar direction.

5. The convictions of the jury on Counts 3 and 4 were unreasonable or cannot be supported on the evidence causing them to be unsafe and unsatisfactory giving rise to a miscarriage of justice.

6 The grounds of the application for leave to appeal against the sentences are that the sentences were excessive:

(a) in not being in accordance with the principles of totality;

(b) in not reflecting the discount apportioned;

(c) in not being in accord with authority.

The material facts of the offences

7 The indictment presented against the appellant contained four charges. He was found not guilty of the first two charges. The charges in respect of which he was found not guilty were first, that on 24 November 2001 at Kemps Creek he assaulted Gina-Marie Miner (s 61 Crimes Act) and secondly, that on the same day he did maliciously inflict grievous bodily harm upon Gina-Marie Miner with intent to do grievous bodily harm to her (s 33 Crimes Act). The Crown as an alternative to Count 2 presented Count 3 on the indictment in respect of which the accused was found guilty.

The Crown case at trial

8 The complainant first met the appellant in 1992. They were married in December 1995 and moved to Kemps Creek in 1999. Their relationship had a history of arguments and violence on the part of the appellant towards the complainant. In May 2001 the appellant assaulted the complainant “pretty bad” about her face and head. She reported the incident to a Constable Grasso. In cross-examination the complainant explained that this incident had involved the appellant smashing her head into the dashboard while he drove the car. After this incident the complainant became very frightened of the appellant. In re-examination the complainant said the incident had been prompted by the fact that she was late picking up the appellant from work. From May 2001 until November of that year, their relationship was very violent and volatile but she was too afraid to go to the police because the appellant threatened to kill her.

9 The complainant was a shift worker at Campbelltown Railway Station. She finished work in the early hours of Saturday, 24 November 2001. She arrived home at about 4.00 am. No one was at home. She observed a .22 rifle lying across the arms of a reclining chair in the lounge room. There was a small round metal tin containing small metal pellets on the seat.

10 The complainant telephoned her husband’s mobile telephone to ascertain his whereabouts because she was worried. He said he was at the Colyton Hotel drinking with friends. She said she would join him. He sounded very drunk. When she hung up the telephone she thought better of going to the hotel and, instead, changed into her pyjamas and sat on the lounge watching a movie.

11 Between 4.00 and 5.00 am the appellant and a friend, Lionel Greentree, arrived home. The appellant was drunk and unsteady on his feet. The complainant told him to “be quiet and let me watch my movie”. He verbally abused her and called her amongst other things “a cunt” and “stupid bitch”.

12 I now set out the Crown case in relation to each individual Count.

Count 1:

13 The complainant said the appellant sat next to her on the lounge and hit her shoulder a number of times asking “what her problem was”. Mr Greentree suggested to the appellant he leave her alone to which the appellant responded: “shut the fuck up or I’ll knock you out”. The complainant moved down the lounge away from the appellant and tucked herself into a foetal position. The appellant then started hitting her forehead and the top of her head with an open hand.

14 The complainant ran to the bedroom and while she heard the appellant and Greentree talking in the lounge room changed into some clothes. She ran back into the lounge room, grabbed her car keys and ran out to the car. She drove to a petrol station where she bought a newspaper and then drove back and parked about 1½ kilometres from the house. Ultimately the need to go to the toilet caused her to drive back to the property. She looked in a window and saw the appellant asleep on the lounge. Greentree had left. She went to the bathroom and then sat on the end of the lounge and had a cigarette. The appellant woke up and ordered her out of the house “or I’ll kill you”. She protested she had nowhere to go. He then dialled directory assistance, asked to be put through to St Mary’s Police Station and told the police “he wanted his wife removed because she is insane” and gave his address. She yelled out in the background that he had a gun.

15 He then told her he intended shooting her “and he is going to put me in the dam … and that he might not even both (sic) wasting bullets. He might just put me in the dam”. She told him to “f off” and then he started hitting her head, back, and stomach “wherever” with his fists to the point where he tired himself out.

16 He then called the police again on the telephone but did not finish his conversation with them but hung up. She then said “no sweetie we need the cops here”. He then threatened to shoot her and “the cops” if the police were called. She then dialled 000 and was put through to St Mary’s Police and told them “my husband has already called you guys twice to come out here and I need you guys out here right now”.

Count 2 (in the alternative Count 3):

17 While she was speaking on the telephone sitting on the lounge, the appellant stood over her. She then felt intense pain in her lower back and fell to the floor. She cried out that he had broken her back. He told her to get out of his house “cunt” and kicked her in the head, ribs and stomach. She found it difficult to walk. She crawled to the back door while he circled her, kicking her, and at one stage when she was outside he grabbed her hair and smashed her head into the ground a couple of times.

18 When she got to her car he went inside. When she got into the car she realised she did not have the keys and so she locked the doors.

Count 4:

19 The appellant then reappeared and with his fist or elbow broke the passenger window and said that he was going to kill her and “started to come after me in the car”. She then opened the driver’s door and went to the neighbour’s house. She banged on the door but nobody answered.

20 Due to her back injury, the complainant could not stand upright and was doubled over. She heard the appellant calling out: “come out, come out wherever you are cunt”. She found a hiding place in one of the sheds on the property where there was some wood and a stack of tractor tyres which concealed her. She heard the appellant then talking to someone saying: “have you seen my cunt anywhere, I’m hunting”.

21 The appellant walked past the shed in which the complainant was hiding and at one stage came into the shed and looked around. One side of the shed was completely open. The shed was made of corrugated iron and had a lot of pieces missing. She saw he had a rifle in his hands with one hand on the trigger and what looked to be a pistol shoved down the front part of his pants and a bayonet in one of his belt grips.

22 The complainant then heard the appellant yelling at someone: “get in the car or I’ll blow your fucking heads off”. Suspecting the police had arrived she came out of her hiding place and headed towards the road. She met a female police officer who pulled her behind a police car. She saw the appellant had the butt of the rifle up against his shoulder, his right hand on the trigger. She heard him yelling at the police “to get in the car or he’d blow their fucking heads off”.

Medical evidence

23 The complainant was placed in an ambulance and taken to Nepean Hospital. Dr Nair, a specialist in neuro-surgery, examined her at the Nepean Hospital Emergency Department. He observed that she had a bruise to her left forehead and a bruise to her upper lip on the left. She was complaining of tenderness over the left lumbar region and of left hip pain. X-rays of her lumbar spine revealed transverse process fractures through L1 and L2 on the left. A CT scan also showed she had a blood clot around the area of the fracture. The blood clot indicated to Dr Nair that the fracture was a relatively fresh injury. He said significant force was required to have caused the fracture of the vertebrae.

Other Crown evidence

24 Lionel Greentree gave evidence. He said he drove the appellant home from the Colyton Hotel leaving there about 4 to 4.30 am. He said the appellant sat down next to the complainant who was watching television and an argument broke out. The complainant got up, smashed all of the beer bottles off a table in front of the lounge chair and went to her bedroom. She stayed in there for a while and then came out yelling, picked up the car keys and left. She got into the car and drove away.

25 Mr Greentree said he then took the appellant to the toilet where the appellant vomited. The appellant returned to the lounge chair and “crashed out”. Mr Greentree put a blanket over him leaving him asleep. Mr Greentree left the house and went to work. Mr Greentree said the appellant remained his friend.

26 A 000 call was received at Sydney Police Centre at 7.45 am on 24 November 2001. The operator who took the call gave evidence that the entry she made onto her computer at the time she took it was: “female screaming into the phone being assaulted by a male call terminated”. The call originated from the appellant’s home. The operator was unable to recall whether the information came from the conversation in the call itself or from a “central line indicator”. The tape recording of the call was no longer in existence having been taped over after six months.

27 Constable Grasso gave evidence that he had been stationed at St Mary’s for about three years before 23 November 2001. He said he received two telephone calls that morning. The first was at 7.45 am from the appellant who said that his wife had “mental problems, she just got out of a mental place in Penrith. If you cunts don’t fucking get out here soon I’m going to kill her and throw her in the fucking dam”. The second was five minutes later again from the appellant who said: “where are you fucking cunts. If you fucking cunts don’t get here I will shoot her”. Asked if he had a gun he said: “yeah I have a .22 rifle. I won’t use it, I have no bullets for it”. He said the gun was in the cupboard and that his wife was outside and that he had locked her out.

28 Constable Grasso said he had taken a statement from the complainant in May 2001 about an assault by the appellant that night and had also taken a photograph of her at the time. Exhibit B was the photograph he took. A couple of weeks later the complainant wrote a letter to the prosecuting authorities withdrawing this complaint. She said she wrote the letter because of threats from the appellant and his father.

29 Constable Jeans, who was one of the police officers called to the house by police radio, gave evidence. He received the radio message at 7.55 am and arrived at the house at 8.13 am with other police. There were three police cars, all fully marked. As Constable Jeans approached the rear of the house he saw the appellant in front of the house. He yelled out: “there is a man with a rifle” and he and the other police took cover. The appellant had been pointing the rifle at the police. The appellant yelled out: “back off or I’ll blow your head off”. Another police officer yelled out: “stop and put the rifle down” to which the appellant replied: “back off or I’ll kill you”. A short time later the appellant put the rifle down, together with a bayonet and a small silver handgun and was arrested. The officer took a statement from the complainant later that day at Nepean Hospital and photographed her (Exhibits C1 – C5). Constable Eaton who arrived in the same police car as Constable Jeans gave similar evidence.

30 The rifle had no bolt nor was it loaded with ammunition. Bullets were, however, found by police. The officer in charge, Detective Ralph, gave evidence that bullets were found in the appellant’s bedroom. They included ten small bullets which appeared to be .22 bullets, but he was not 100% sure.

31 The complainant agreed that she had been diagnosed at one stage with bipolar depression at Nepean Hospital. She denied, in fact, that she suffered from it. She said that she had post traumatic stress syndrome. She agreed that she had been admitted to hospital after attempting to take her own life. She said that she was depressed because of the appellant’s constant violence and verbal abuse towards her. She had suffered broken noses and black eyes at his hands.

The case for the appellant

32 The appellant gave evidence. He said that he and Mr Greentree had arrived at the Colyton hotel at about 9.30 pm on Friday night. They had earlier been at another hotel for half an hour. The Colyton Hotel was a good half hour drive from his home. He got the telephone call from his wife at about 3.15 am. He said he had drunk a “hell of a lot” and when he left the hotel around 4.00 he was very drunk. He did not remember getting into the car. Lionel Greentree drove. When they got into the house his wife was watching a video. They sat on the lounge drinking and talking. He did not remember what they spoke about or what he or Mr Greentree drank. He remembered his wife had a couple of beers on the table. He and his wife got into a verbal argument but he could not remember what it was about.

33 The appellant got into the bathtub where he vomited. He then lay on the lounge, Mr Greentree covered him with a blanket and he fell asleep. He was then awoken by his wife who was prodding him, screaming: “wake up you prick, wake up”. He saw the barrel of a gun being prodded around his face and shoulders. He grabbed the barrel of the gun and pushed it backwards, causing the stock to hit his wife in the right cheek. She stumbled over the coffee table and fell back over a green recliner lounge chair onto the floor. The rifle finished up lying on the floor. He then dialled 12 455 and asked for St Mary’s Police. Constable Grasso answered the phone. The appellant recounted the conversation in his evidence in the following terms: “Oh you’re the bloke who arrested me once before … I wanted my wife removed from the house … she had bipolar disorder and I wanted her removed from the house that she was attacking me”. The police officer told him to keep calm and hung up. Whilst he was on the telephone, his wife was punching him.

34 He then picked up the gun and put it in the laundry cupboard, whilst his wife continued to hit him. She then ran out the back door and he locked it behind her. He returned to the lounge room. His wife then came to the lounge room window and screamed at him: “I’m going to kill you” and gestured by forming her hand in the shape of a pistol held at her temple.

35 Fearing for his safety, he telephoned 12 455 and again asked for St Mary’s Police. Again Constable Grasso answered. The appellant asked: “where the fuck are you” and said to hurry, to which the police officer replied they would be there soon. He told the police officer he had “her gun” and “there was no bullets for it” and that he had locked her outside. The police officer instructed him to stay in the house and leave her outside.

36 The appellant said his wife had originally brought the rifle to the house from work for fox control, but “there was no bolt or ammunition for the rifle at all”.

37 The appellant said his wife then kicked the back door in. It was secured by two Yale locks but only one worked properly. She attacked his head and shoulders with punches and he responded by pushing her backwards. He retreated to the kitchen to escape her. He then heard her pick up the phone and ask for St Mary’s Police but could not hear the conversation. He heard her pick up car keys and then the back door slammed. He looked out the kitchen window and saw her run up the footpath to the gate, place her hand on the top of the gate and “try and spring over the gate”. In doing so, she fell over the gate. Her feet landed on the hood of a car parked next to the car and she landed on the ground. She got up and took off.

38 He said he telephoned his father, a solicitor, to ask his advice and was told: “just sit there, don’t leave the house, wait for the police”.

39 The appellant waited and then heard and saw three police vehicles coming up the driveway.

40 He made this observation from his front door. He retrieved the rifle from the laundry in order to take it out and give it to the police. He also picked up a bayonet which was in a cupboard and a cigarette lighter which was in the form of an imitation pistol. He then walked out the back door and through the gate.

41 When he walked through the gate, he saw police vehicles and police in bullet-proof vests with their guns drawn, which made him “freak out”. He said: “I didn’t know what was going on”.

42 He then put the rifle to his shoulder, pointed it at police and said: “back off”. The police told him to “drop the gun or they’d shoot”.

43 He did not comply with the police demand but, instead, pointed the gun in the direction of the police for a period of “less than five minutes”. Eventually he threw the rifle, bayonet and cigarette lighter down and put his hands in the air. He was then hit by a police officer with a baton quite a few times.

44 The appellant said that rather than being violent towards the complainant in the preceding periods in 2001 before the alleged offence, “if anything it was the other way round, she would be drunk all the time and she would just go ballistic and attack me for no reason and then it would take days before she’d calm down. She just had this uncontrollable rage”. He said he hit her once across the face with an open hand “when we were having the argument about the affair that she had at her work”.

45 He said that prior to the alleged offence and in October 2001, he came home to find the complainant half lying on the floor and the lounge with an empty bottle of bourbon and empty Arapax medication lying beside her. Upon waking her from her drowsy state she said: “yeah I’m trying to kill myself”. He said this event had not been preceded by any “traumatic incident between the two of them”. He took her to Nepean Hospital. He said that she had done this before but no previous incident had required him to take her hospital.

The summing-up

46 The trial judge commenced her summing-up on the sixth day of the trial. She provided the jury with a document (MFI 10) setting out the elements of the offences on the indictment to which she drew the jury’s attention in the course of her summing-up. I have set out the terms of that document in the Schedule to this judgment.

47 I will deal with the relevant passages of the summing-up as I deal with the appellant’s complaints.

48 Before I turn to consider the individual grounds of appeal, I note that the Crown asserts that Criminal Appeal rule 4 applies to grounds 1(a) (Count 4), 2 and 4. The appellant does not challenge that assertion. It is appropriate at the outset, therefore, to make some general observations about the operation of that rule.

49 Criminal Appeal rule 4 provides:

No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.

50 The purpose of rule 4 has been well rehearsed in earlier judgments of this Court. The rule gives recognition to the commonsense proposition that the fact that no objection has been taken to the manner in which the trial judge summed up to a jury is “cogent evidence … in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done”: Tripodina & Morabito v R (1998) 35 A Crim R 183 at 191 per Yeldham J (with whom Carruthers and McInerney JJ agreed).

51 The rule is intended to discourage “the practice of subjecting a summing up, after the trial is over, to a minute and detailed textual criticism in the hope of finding something on which to base an argument”: Tripodina at 192. It is for those reasons that the Court, while “astute to secure for the accused a fair trial according to law”, should equally “be astute also to ensure that points, especially those of little or no merit, which were not thought by counsel appearing at the trial to be of any great significance, should not be raised for the first time on appeal”: Tripodina at 195.

52 The leave required by rule 4 will not be “lightly granted” and, generally speaking, “will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings: Tripodina at 195; see also R v Abusafiah (1991) 24 NSWLR 531 at 536 per Hunt J (with whom Gleeson CJ agreed and with whose reasons Mahoney JA generally agreed).

53 An appellant seeking leave pursuant to rule 4 bears the onus of demonstrating that by reason of a misdirection “he lost a real chance (or a chance which was fairly open to him) of not being found guilty”: R v Yuill (1994) 34 NSWLR 179 at 186.

54 One of the purposes of rule 4 is to ensure that the trial judge receives the assistance from counsel to which any trial judge is entitled in the task of giving appropriate directions to the jury: R v Yuill at 185. In R v Roberts (2001) 53 NSWLR 138 at 150 – 151 [62] ff Carruthers J drew attention to the numerous cases in which the Court had exhorted trial counsel to be faithful to the positive obligation rule 4 imposes to assist the Court in the conduct of a trial and the significance failure to seek directions may have in an appeal from conviction. While despairing that such pleas appeared in many cases to have fallen on deaf ears, Carruthers J also referred (at [67]) to the desirability of the trial judge at the conclusion of the summing-up inquiring of counsel in the absence of the jury whether he or she had overlooked any directions of law or warnings which should be given to the jury as well as hearing submissions on the correctness or otherwise of directions of law which had in fact been given.

55 In this case, the Court’s exhortations, at least insofar as counsel for the appellant is concerned, have yet again fallen on deaf ears.

56 However the trial judge undertook the precautionary course of inquiry to which Carruthers J referred, not merely at the conclusion of her summing-up but also during its delivery. She made that inquiry of counsel at the luncheon adjournment after she had given the jury the usual general directions and directed them as to the matters of law and the issues of fact which related to counts 1 and 4. Counsel for the appellant made no complaint about the matters which now form the basis of grounds 1(a), 2 and 4.

Ground 1(a): Count 4
The wrong/no direction ground:

57 This ground of appeal complained that her Honour erred in law in directing and/or failing to direct the jury adequately or properly as to assault in Count 4.

58 The appellant complains that her Honour’s direction in relation to Count 4 was inadequate. The complaint as set out in the appellant’s written submissions was that her Honour ought to have directed the jury that to constitute assault, the accused had to have a present ability to effect his purpose or, to put it another way, that “an offer to strike a person at such a distance as to make contact impossible is not an assault”.

59 As developed in oral submissions, the complaint about the trial judge’s direction in relation to Count 4 was expressed as being that the trial judge did not direct the jury that, in order to prove that the appellant had assaulted Ms Miner, the Crown had to prove that Ms Miner apprehended the infliction of immediate unlawful force to her person.

60 The appellant relies on Knight v R (1988) 35 A Crim 314 to support his complaint that her Honour ought to have directed the jury that the accused had a present ability to effect his purpose or, to put it another way, that “an offer to strike a person at such a distance as to make contact impossible is not an assault”.

61 Knight was an appeal from a conviction, inter alia, of assault under s 61 of the Crimes Act. The assault was said to be constituted by words spoken by the appellant on the telephone. The Crown case in relation to the charges of assault was based on the evidence of the recipients of the calls as to what was said by the caller the nature of which, as described by Lee J (with whom Carruthers and Loveday JJ agreed), was threatening death or bodily injury to the recipients as well as being extremely abusive. Apart from that evidence it appears the jury also had before them the fact that the calls had been made from an unknown address to a caller who took the call an appreciable distance away. This, as the Crown conceded on appeal (at 316), was a “long way out of firing distance”.

62 The Court quashed the conviction because the evidence was not sufficient to constitute evidence of assault, for there was nothing in the Crown case from which any conclusion could be drawn that any of the recipients of the calls were ever in any danger of immediate violence. As Lee J put it (at 317):

“But as to there being any evidence that those threats were threats of immediate violence it is clear that they were not. They were mere threats which may have been executed at any time, if at all”.

63 His Honour considered Taylor J’s decision in Barton v Armstrong [1969] 2 NSWR 451. He accepted (at 318) Taylor J’s view that “a threat of violence made over the phone could be a threat of immediate violence in given circumstances, and thus an assault and accordingly I am not to be taken as saying that merely because a threat is made by phone it could thereby constitute an assault”.

64 In Knight, it was the absence of any evidence that the threats were threats of immediate violence which resulted in the appellant’s successful challenge to his conviction of assault.

65 It has long been held that threats which put a reasonable person in fear or apprehension of physical violence may constitute an assault even though the victim did not know when that physical violence may be effected: Barton v Armstrong [1969] 2 NSWR 451 at 454 – 455. In the latter judgment Taylor J made it clear that the essence of an assault constituted by threat rather than actual striking was the “expectation of physical contact which the offender creates in the mind of the person whom he threatens”. While his Honour acknowledged that in some cases an immediate ability to carry out the threat was one way of creating the fear of apprehension (455.45), his Honour also held that if the threat produced the fear or apprehension of physical violence then the law was breached even though the victim did not know when that physical violence may be effected. It was in that context that his Honour held that threats uttered over the telephone which produced the fear or apprehension of physical violence may constitute an assault even though the victim did not know when that physical violence may be effected (455.50).

66 Another illustration of the circumstances in which an assault might be constituted by a verbal threat sufficient to raise a reasonable apprehension of violence in Ms Miner’s mind can be seen from Zanker v Vartzokas (1988) 34 A Crim R 11 to which the Crown referred.

67 In that case, a woman accepted a lift from the accused. While the van was moving, he offered her money for sexual favours. She rejected the advances and demanded to be let out of the vehicle. The accused accelerated, saying "I am going to take you to my mate's house. He will really fix you up". She was put in fear and jumped out of the moving vehicle. The magistrate dismissed a charge of assault occasioning actual bodily harm on the basis that there was no fear of immediate violence, but fear of future violence. On appeal, White J held the woman was put in fear of relatively immediate imminent violence which continued to have effect as the vehicle continued toward the threatened destination while she was unlawfully imprisoned and at the mercy of the accused. That was sufficient for the charge of assault to be made out.

68 His Honour referred (at 14) to the fallacy in the defendant's argument as being “the assumption that the words had effect only at the time when they were uttered and heard whereas they were ringing presently in her ears as a continuing threat, without the necessity for repetition, second by second as they progressed towards the house.”

69 After referring to various authorities, including Barton v Armstrong which required immediacy or imminence of the feared physical violence to constitute assault, White J gave the following illustration (at 17-18):

“During the course of argument, some examples were canvassed. In a hypothetical example, I asked counsel to assume that the defendant was threatening the victim in a remote scrub area where he was stalking her and calling out threats to rape her if and when he caught her. I also asked counsel to assume that the defendant could catch her and carry out his threat at any time he wished and that both he and she knew this was so. While he was taking no immediate steps to carry out his threats he continued to pursue her because he enjoyed the prolongation of her fear. I expressed the opinion that his original words uttered in those circumstances constituted an assault, for the reasons already given, namely because her fear was a continuing fear induced by his original words in a situation where he remained in a position of dominance and in a position to carry out the threatened violence at some time not too remote, thus keeping the apprehension, the gist of assault, ever present in the victim's mind. The facts in the present appeal are closely analogous to the facts in the hypothetical situation.”

70 This is an apt analogy. Indeed, as the Crown submitted, it might be thought the violence threatened to Ms Miner was even more immediate than it was in Zanker, because the appellant “had already been violent towards [Ms Miner] in the house and had a short time before come at her in the car.”

71 I accept the Crown’s submissions. The authorities are clear that a threat to strike a person even at such a distance as to make contact impossible may constitute an assault if it instils a fear of immediate violence in the mind of the hearer.

72 The appellant’s challenge to the judge’s summing-up based on the proposition that “an offer to strike a person at such a distance as to make contact impossible is not an assault” is wrong as a matter of law.

73 I next turn to consider the appellant’s complaint that the trial judge did not direct the jury that in order to prove that the appellant had assaulted Ms Miner, the Crown had to prove that Ms Miner apprehended the infliction of immediate unlawful force to her person.

The directions given – Count 4

74 The trial judge directed the jury as a matter of law that Count 4 required the Crown to prove beyond reasonable doubt that the accused had assaulted Gina-Marie Miner. She explained that “assault” was a “word in common everyday use” and that it might conjure up in the jury’s mind “the image of a person striking another person physically whether with a hand, a fist or some hand-held implement”. She directed the jury that there are differences between the law and everyday parlance. She then said:

“ For example, if I raised my hand at you in a menacing fashion and thereby caused you to fear that you were about to be struck then the law says that I have assaulted you. Ordinary use of the word assault would probably not have extended that far … alternatively, and this is relevant in respect of Count 4, an assault can be a threat of striking, touching or application of force. That is the threat of those things occurring again without consent, be (sic) intentional, not an accidental threat and it is without lawful excuse … in Count 4 what the Crown relies on is the threat of an assault, the threat of an application of force and then the other elements 2, 3 and 4.” (Emphasis supplied)

75 The latter reference was a reference to MFI 10 where, in relation to the definition of assault and, in particular, an assault constituted by a threat of striking, touching or application of force, elements 2, 3 and 4 were set out as:

“2. It is without consent.
3. It is intentional (not accidental).
4. It is without lawful excuse.”

76 When dealing with the facts in relation to Count 4, the trial judge reminded the jury that the Crown relied upon the “threat of striking, touching or application of force”. She reminded the jury that the Crown relied on the continuing threat, according to Ms Miner’s evidence, that the accused had said he was going to kill her when she was out in the car, that he smashed the car window, that she ran away but could not stand up and was bent over with her head at her knees and that she heard the accused calling out: “come out, come out wherever you are”, that Ms Miner had hidden in a shed in a stack of tyres and heard the appellant say words to two men in the shed to the effect of “I am hunting”, and saw the accused with a rifle in his hands, a pistol down the front of his pants and a bayonet in one of his belt loops with his right hand on the trigger of the rifle and the left hand supporting the barrel. She drew the jury’s attention to the fact that the accused completely denied hunting the complainant and said he had remained in the house at all times until the police attended the property.

77 After recounting these facts the trial judge said to the jury:

“That evidence the Crown relies on to satisfy you beyond reasonable doubt that the accused threatened the complainant with immediate and unlawful violence. That is again that there was no consent, it was intentional and it was without lawful excuse which, as I say does not arise in circumstances as alleged by the Crown”.

78 She then reminded the jury of the accused’s complete denial of ever hunting the complainant in the early hours of 24 November 2001.

79 In my view her Honour’s direction to the jury adequately identified the elements of the offence. It might be accepted that in her direction of law she did not parrot the words “immediate violence” but she used the phrase “about to be struck”, which, in my view, is synonymous. That was a correct statement of the law.

80 The jury would clearly have understood her explanation of the concept of an assault constituted by a threat rather than an actual blow as requiring a sense of immediate apprehension of violence. Indeed, the fact that the appellant’s counsel did not complain to her Honour about this direction makes it clear that in the atmosphere of the trial that was the sense conveyed by her remarks.

81 Further, when dealing with the facts, her Honour expressly explained that the Crown relied upon the evidence she had summarised to satisfy them beyond reasonable doubt that the accused threatened the complainant with immediate and unlawful violence – thus their attention was expressly drawn to the requirement of immediacy.

The inadequate direction as to the facts ground

82 The appellant also argued, rather faintly I thought, that the trial judge had not set out the facts in relation to each element of the offence charged under Count 4. Mr Papayanni referred to Piazza v R (1997) 94 A Crim R 459. In Piazza (at 460) Hunt CJ at CL referred to the trial judge’s obligation “to present to the jury the issues of fact which they have to determine, and to do so with such reference to the facts of the case as is necessary to assist them in that task”. Hunt CJ at CL referred, in turn, to Zorad v R (1990) 19 NSWLR 91 at 105 where this Court pointed out that a summing-up should “include a collected résumé of the evidence which relates to each of [the] ingredients [of the offence which the Crown has to establish]”.

83 In my view this submission should be rejected. I have already outlined the trial judge’s summing-up on the facts in relation to Count 4. She made it clear those facts related to Count 4 in respect of which she had already given the jury directions of law. In my opinion that summing-up presented to the jury the issues of fact they had to determine and complied with Piazza and Zorad.

The no evidence ground

84 The appellant also complained that the evidence was not sufficient to convict the appellant of assault. Mr Papayanni submitted that the complainant had given no evidence that she feared immediate violence and that it was not open to the jury, absent such evidence, to infer that that was her state of mind.

85 In my opinion that submission should be rejected for two reasons. First, although it must be accepted that Ms Miner did not state, in relation to the events which commenced with the smashing of the Laser’s passenger window, that she feared the appellant was about to wreak violence upon her, her actions were those of a frightened person. She had fled a house in which (on her account) the appellant had struck her repeatedly. She had first sought refuge in her car, then (unsuccessfully) in a neighbour’s house. When she was unable to raise the neighbours she hid in a shed under truck tyres. She remained hidden while observing the appellant moving nearby calling out for her whilst carrying a rifle, what appeared to be a pistol and a bayonet. She did not emerge from her hiding place until the police arrived. Her reaction to the appellant’s conduct was compelling evidence upon which the jury could rely to infer that she was afraid the appellant was about to apply force to her in some manner, whether by using the weapons with which he was armed or by striking or kicking her as he had earlier in that morning’s episode.

86 Once again it is significant that no complaint was raised by counsel who appeared for the appellant at his trial (who was not counsel who appeared on the appeal). The appellant’s present complaint that there was no express evidence that the complainant feared immediate violence appears to me to have been developed as a result of the deplorable practice of subjecting a summing-up, after the trial is over, to a minute and detailed textual criticism in the hope of finding something on which to base an argument. In my view this complaint has no merit. It was of no significance to counsel at the trial and it should not be permitted to be raised on appeal.

87 I would not give the appellant leave to raise any grounds of appeal in relation to Count 4.

Grounds 1(b) and 2: Count 3:

88 Count 3 was the charge that the appellant had maliciously inflicted grievous bodily harm upon Ms Miner contrary to s 35 of the Crimes Act. It related to the Crown’s case that the appellant had broken Ms Miner’s back.

89 In these grounds of appeal the appellant complained both that her Honour erred in law in directing and/or failing to direct the jury adequately or properly as to “recklessly” in Count 3 and, further, that her Honour erred in law in failing to direct the jury as to the evidence applicable to “maliciously” and “recklessly” in that count.

The wrong/no direction ground

90 The appellant complains that the trial judge’s direction was inadequate because she did not direct the jury that “maliciously” required an actual intention to do the particular kind of harm that was in fact done or recklessness as to whether such harm should occur or not. The appellant submitted that the jury should have been directed that the accused had to foresee that the particular kind of harm might be done and yet had gone on to take the risk of it. He relied upon R v Cunningham [1957] 2 QB 396 and R v Stones (1955) 56 SR (NSW) 25 at 33 – 34.

The summing-up

91 MFI 10 defined “maliciously” as meaning “with an intention to cause some physical injury or recklessly – that is with foresight of the possibility that some physical harm might be inflicted”. When directing the jury in relation to Counts 2 and 3 (which it will be recalled were presented in the alternative), the trial judge referred them to that definition, then explained that the Crown’s case was that “whatever blow it was, by what ever means that blow was occasioned the accused must have intended some physical injury to be caused and relies on the evidence of Dr Nair in that regard”.

92 Dealing specifically with Count 3 her Honour said:

“Count 3 … if the Crown does not satisfy you beyond reasonable doubt that it was the accused who inflicted the grievous bodily harm, he is not guilty straight away of Counts 2 and 3 because that first element is essential. In respect of Count 3 the Crown must only satisfy you that the accused acted maliciously at the time he inflicted the grievous bodily harm to Ms Miner and I have already referred you to the definition of maliciously. The Crown only has to prove beyond reasonable doubt that he intended to cause some physical injury at the time the blow was inflicted or that he foresaw, he had foresight of the possibility that some physical harm might be inflicted by that blow being occasioned …”.

93 In R v Cunningham, above at 399 – 400, the English Court of Criminal Appeal approved, as an accurate statement of the law, the statement that:

“In any statutory definition of a crime malice … [requires] either:
(1) an actual intention to do the particular kind of harm that in fact was done; or
(2) recklessness as to whether such harm should occur or not (ie, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it)”

94 Later in their judgment (at 401) the Court made it clear that the words “particular injury” in the statement they had approved was satisfied by proof that the accused foresaw the possibility of physical injury, rather than the specific injury (in this case the fractured vertebrae) which actually resulted.

95 In Stones the Court (Street CJ, Roper CJ in Eq and Herron J) said (at 471):

“Generally speaking, malice aforethought means only intention … the important thing is not the desire of consequence, ie. motive or intent, but merely foresight of consequence which is the common factor to intention and recklessness. Every crime involving mens rea requires one or other factor, so that if it does not positively require intention, it requires either intention or recklessness; and particularly is this so in crimes involving malice. … the state of a man’s mind as to intent in a criminal case can ordinarily be proved only by inference from the circumstances, and the ordinary method of inquiry is to ask what were the probable consequences of the act. Thus the standard test of a man’s mind in the commission of an act is the foreseeable consequences. If he applied his mind to the consequences, and without concluding that they would probably happen (which is criminal intent) his state of mind was that he did not care whether they happened or not, that is recklessness. The task of a jury is to infer to what extent the accused appreciated the consequences of his act.”

96 The passage in R v Stones to which I have referred was referred to recently by this Court in R v Grant (2002) 55 NSWLR 80 at 94 [60] by Wood CJ at CL (with whom Spigelman CJ and Kirby J agreed) as follows:

“As was made clear in R v Stones and R v Cunningham … and, as s 5 of the Crimes Act also makes clear, crimes of malice require either intention or recklessness, each of which calls for a foresight of the consequences, in addition to the mental element required for basic intent”.

97 In Coleman v R (1990) 19 NSWLR 467 at 471 Hunt J (with whom Finlay and Allen JJ agreed) approved a trial judge’s direction to a jury on the concept of recklessness as being “a realisation of the possibility that some such injury [such as was in fact caused] might result but nevertheless proceeding to act”. Hunt J said that in that direction, the trial judge had followed what had long been accepted as the correct direction based upon the decision in R v Cunningham.

98 It is true that the trial judge’s direction on the issue of recklessness did not incorporate the passage I have underlined. However, in my view, in the facts of the present case, those words add little in a case where there was ample evidence that the appellant inflicted a blow intending to inflict some physical injury – it might be thought that, in such circumstances, the issue of recklessness was moot.

99 It was clear from the direction her Honour gave that the jury should consider on the issue of recklessness whether the appellant realised some injury might be inflicted by his blow, but nevertheless struck Ms Miner.

100 I would reject this ground of appeal.

Ground 2: directions concerning the evidence in relation to Count 3

101 I turn then to the appellant’s complaint that the trial judge did not adequately address the evidence on the issues of maliciously and recklessness. No complaint was made of these directions at the trial.

102 The appellant complained that there was no evidence as to what he was alleged to have done which was said to have caused the intense pain in the complainant’s back. He submitted that absent such evidence his conduct could not be examined nor could his opportunities for knowledge to determine whether or not he was reckless.

103 In directing the jury in relation to Counts 2 and 3 (which the Crown presented as alternatives), the trial judge related Ms Miner’s evidence that:

“… whilst she was on the phone to the 000 operator the accused was standing close to her and … she was bending over with her back exposed at about 45 degrees to the accused … that she suddenly felt an extremely intense pain in her lower back and that she threw the phone down and fell to the floor … (and) cried out ‘you’ve broken my back John, you’ve broken my back’ and he said: “I don’t care get out of my house” and started kicking her about the head, ribs and stomach as she crawled away and then said to her: “get out of my house get out of here while you still can”.

104 The trial judge drew the jury’s attention to the fact that Ms Miner could not say how the appellant had inflicted the injury upon her because she did not see what happened as she had her back to him. She pointed out that the Crown relied upon Ms Miner’s evidence to satisfy the jury beyond reasonable doubt that it was the accused who inflicted the injury and that if they did not accept that evidence, beyond reasonable doubt, then the accused was entitled to be acquitted. In terms of the accused’s intention the trial judge directed the jury that his intention might be inferred or deduced from the circumstances in which the act occurred and from the accused’s conduct before or at the time he did the specific act which the Crown relied upon as causing grievous bodily harm to Ms Miner. She pointed out:

“In some cases a person’s acts may themselves provide the most convincing evidence of his intention. Where a specific result is the obvious and inevitable consequence of a person’s act and where he deliberately does that act you may readily conclude that he did that act with the intention of achieving that specific result”.

105 The Crown submitted that the appellant’s complaint that there was no evidence regarding what the appellant did to the complainant’s back had no substance. The Crown drew attention to Ms Miner’s evidence that a short time before the incident which formed the subject of Counts 2 and 3, the appellant had struck the complainant on her head, back and stomach with his fist to the point where he “literally tired himself out”. The incident when she was telephoning the police occurred immediately after these blows had been struck.

106 The Crown noted that the appellant implicitly criticised the trial judge’s description of what allegedly occurred as a “blow”. It submitted that on any view of the matter if the complainant was to be believed as she clearly was, a “blow” inflicted by the appellant was a perfect description of what had occurred – whether or not the blow had been inflicted by a fist, a kick or an implement. What was important, the Crown submitted, was the force of the blow. It relied upon Dr Nair’s evidence that the injury inflicted upon Ms Miner required a significant amount of force and a direct trauma to the part of her body where he identified the fractured vertebrae.

107 In my view there was abundant evidence before the jury from which it could infer that it was the appellant who had inflicted the blow which fractured Ms Miner’s back. The trial judge drew the jury’s attention to that evidence.

108 Finally I note that Mr Papayanni referred to a passage in Glanville Williams’ Criminal Law (without identifying the edition or year of publication) the only significance of which, in the present context, could be the proposition that the fact that on the occasion in question the accused was drunk might be relevant to the issue of recklessness. In this context, the Crown pointed out that Count 3 charged an offence under s 35 of the Crimes Act which is not an “offence of specific intent” as referred to in s 428B of that Act. In such circumstances, s 428D(a) meant that as the appellant’s intoxication was self-induced, it could not be taken into account in determining whether the appellant had the mens rea for the offence in question.

109 I would not give the appellant leave to raise Ground 2.

Ground 3

110 Ground 3 complains that the trial judge was in error in admitting as evidence the conduct, conversations, statements and threats of the appellant after the police arrived at the property. It also complains of the fact that the trial judge did not properly direct the jury as to how it could use that evidence in respect of any count.

111 Counsel for the appellant conceded before the trial judge that the Crown could educe evidence that the appellant had a rifle when the police arrived. He objected to the Crown educing evidence that the appellant had pointed the rifle at police, that the police had then taken cover and that the appellant threatened the police to “back off or I’ll kill you”.

112 Defence counsel had earlier advised the trial judge that the defence would be that the complainant’s injuries happened either in the course of the accused defending himself or by the complainant tripping over a coffee table within the house or outside the house, falling over a fence or gate. Essentially the case which the accused proposed to advance was one that he was acting in self defence.

113 The trial judge gave a brief ruling about the admissibility of the statements. Save to identify those portions of the police officer’s statements which were admissible, she did not give reasons for her ruling.

114 The appellant complained that the police officer’s evidence was inadmissible, that it went to propensity, that it was not part of the res gestae and that it did not add to the Crown evidence save in a manner which was impermissibly prejudicial to the appellant. He submitted that all incidents upon which the charges went before the jury had been completed by the time the police had arrived. He submitted that his attitude towards the police was not relevant to what had happened save to confirm that he did have the gun, the toy-pistol and bayonet in his possession. He submitted that that fact could have been proved without admitting the conduct and conversations by the appellant. He relied upon Harriman v R (1989) 167 CLR 590 at 627 – 635.

115 The Crown submitted that the evidence was admissible on the grounds to which her Honour referred as well as on a number of others. The Crown submitted that the appellant’s behaviour when the police arrived was inconsistent with his defence that he had been the victim of violent attacks at the hand of the complainant and had sheltered in the house until the police arrived. The Crown submitted that the evidence of the appellant’s conduct in relation to police was independent of the complainant’s evidence and was capable of corroborating her evidence as to the events of the evening. The Crown also submitted that the evidence of the appellant’s threat to the police supported the proposition that he was in an aggressive state at the time he was hunting the complainant, which hunt was interrupted by the arrival of the police. The Crown submitted that the threats uttered to the police were the continuation of the aggressive state of mind the appellant had exhibited towards the complainant moments earlier before they arrived. The Crown submitted that, in such circumstances, the evidence was not propensity evidence but was admissible relying upon O’Leary v R (1946) 73 CLR 566 at 577 – 578 per Dixon J; Adamv R [1999] NSWCCA 189 at [25]; (1999) 106 A Crim R 510 at 515; R v Player [2000] NSWCCA 123.

Ground 3: consideration

116 At common law, evidence of conduct that forms part of a relevant transaction (“transaction evidence”) will itself be relevant because “without [evidence of such conduct] the transaction of which the [fact in issue] formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event”: O’Leary per Dixon J at 577. In O’Leary B and others took part in a drunken orgy which commenced on Saturday morning and continued until late on Saturday night. O’Leary was found guilty of the murder of B. At the trial evidence was admitted that at various times during the orgy O’Leary had violently assaulted other persons. Some of these assaults were unprovoked and all consisted of brutal blows to the head. During the afternoon O’Leary had aimed a blow at B. The High Court, by majority (Latham CJ, Rich, Dixon and Williams JJ) held that the evidence of O’Leary’s earlier behaviour was admissible as being relevant to the issue whether O’Leary murdered B on the ground that it disclosed a connected series of events which should be considered as one transaction.

117 In Adam, the Court (per Spigelman CJ, James and Bell JJ) held at [25]-[26] that the principle in O’Leary had not been abolished by the Evidence Act 1995 (NSW) and that transaction evidence would satisfy the test of relevance under s 55, Evidence Act.

118 Despite being relevant, the use of transaction evidence may be restricted if it involves “tendency” or “coincidence” reasoning within the meaning of the Evidence Act, or “propensity evidence” in common law terms. If it is relevant for a use which does not involve tendency or coincidence reasoning, for example being evidence relevant to a person’s state of mind or evidence of conduct forming part of a relevant transaction, it may be admitted for that use, subject to the discretions in ss 135 and 137, Evidence Act.

Evidence relevant to a person’s state of mind

119 Transaction evidence will be admissible whether it occurred before or after the alleged offence.

120 In Adam, the appellant was found guilty of maliciously inflicting grievous bodily harm to an off-duty police officer in a hotel car park. The Crown alleged that the appellant was one of the group involved in the attack. It sought to rely on evidence that the appellant had earlier displayed aggressive behaviour in the hotel as evidence of the appellant’s state of mind at a time sufficiently proximate to the time of the alleged offence to be capable of demonstrating the appellant’s state of mind at the time of the alleged offence.

121 The Court held at [30] that:

“… evidence of conduct by an accused person evincing a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence is not evidence of conduct by an accused person “in the past” or evidence tending to show that he has a particular “disposition” or “propensity” or “inclination” and no direction that the jury should not engage in tendency reasoning is required (although in a particular case a direction of some sort might be required).”

122 Thus it does not involve tendency reasoning to use evidence of a state of mind in existence at one point in time to suggest that the same state of mind may well have been in existence a short time later or a short time earlier.

123 In Player, the accused was charged pursuant to s 195(a) of the Crimes Act 1900 (NSW) with maliciously damaging property belonging to another, namely a shop window at a fruit market in Rawson Street, Epping. The Crown alleged that while in a drunken and aggressive state the appellant smashed a glass fruit shop window. To prove the offence the prosecution had to establish that the appellant, in breaking the window, acted maliciously. The Crown sought to rely on evidence that the appellant was in an aggressive state when seen in close vicinity of the fruit market shortly after the sound of glass being smashed, submitting that this was evidence of conduct by the appellant evincing a particular state of mind at a time so close to the commission of the alleged offence as to permit an inference that the same state of mind was in existence at the time of its commission. It submitted that the aggressive state of mind which did not baulk at damaging or attempting to damage a sign and bins was but a continuation of the accused’s earlier state of mind when the window was broken.

124 Priestley JA (with whom Foster AJ agreed) held at [22] that the evidence was admissible as going to the appellant’s state of mind at times relevant to the commission of the alleged offence.

125 Smart AJ (with whom Foster AJ also agreed) followed Adam at [26] and [30]. His Honour also noted at [10] that:

“In Regina v Beserick [1993] 30 NSWLR 510 at 520 Hunt CJ at CL said:
‘It is but a very familiar principle of the law of evidence that subsequent behaviour may be regarded in order to indicate the state of mind which existed at an earlier time.....and it matters not whether [the acts] precede the time of the offence charged: (ibid) or succeed it.’ ”

Evidence of conduct which forms part of a relevant transaction

126 In O’Leary, (at 581-2), Williams J (who formed part of the majority), drew a distinction between transaction evidence and propensity evidence:

“It is not merely evidence that the appellant was a violent man who was likely to commit the crime, in which case it would have been inadmissible. It is evidence of certain significant incidents which took place in a series of connected occurrences which commenced with the drunken orgy on the sixth of July and concluded with Ballard’s death in the early morning of the seventh.”

127 In Adam, in addition to arguing that the evidence of the appellant’s earlier aggressive behaviour went to his state of mind at the time of the attack on the police officer, the Crown also argued that it was admissible as being O’Leary transaction evidence. The Court held that if evidence of some event “was an integral part of a connected series of events … which included [an event in issue] and which could not truly be understood without reference to the evidence” then such evidence would be relevant under s 55 Evidence Act and would not be tendency evidence: Adam at [26]-[27].

128 In Player the Crown contended, relying on O’Leary and Adam, that the smashing of the window by the appellant was part of a transaction consisting of connected events. The “transaction” was a rampage. The Crown alleged that the appellant, after leaving the hotel in a drunken state, embarked upon a course of aggressive and destructive conduct. It submitted that without the challenged evidence the conduct which constituted the offence charged could not truly be understood and, isolated from it, could only be represented as an unreal and not very intelligible event. The impugned evidence put the conduct which constituted the offence charged into context. Smart AJ followed Adam, holding at [17]:

“This resolves the admissibility point. The smashing of the window was part of the same connected series of events, namely “a drunken aggressive and destructive rampage in the early hours of Saturday morning”. The material in question was admissible.”

Harriman v R

129 The appellant’s reliance upon Harriman v R (1989) 167 CLR 590 at 627-635 affords him no comfort. In Harriman the High Court (Brennan, Dawson, Toohey, Gaudron and McHugh JJ) held that evidence of the accused's prior involvement with X in the sale of heroin was admissible on the ground that it was highly probative of the criminal character of the accused's association with X in Thailand in April 1987.

130 McHugh J dealt with the issue of the admissibility of evidence disclosing other criminal acts by an accused person in the passages upon which the appellant relies. While his Honour accepted (at 627) the general proposition that “[u]pon the trial of a criminal charge, evidence proving that the accused has been guilty of other criminal acts is not admissible if it does no more than prove that the accused has a general criminal disposition which makes it likely that he committed the offence with which he is charged”, he then identified a number of exceptions to that proposition.

131 The first exception was evidence of facts forming part of the same transaction as that under inquiry (i.e. part of the res gestae): Cross on Evidence, 3rd Aust ed (1986), at 1004 and see R v Bond [1906] 2 KB 389, at 400; R v Herbert [1916] VLR 343, at 346, 348-349; O'Leary v R (1946) 73 CLR 566, at 575-577, 582; R v Evans (1950) 34 Cr App Rep 72, at 77-78; R v O'Regan [1961] Qd R 78, at 87, 98; Bell v R (1985) 63 ALR 433, at 439-440; Williams v R (1986) 84 Cr App Rep 299, at 301-302. (Harriman at 628);

132 The second exception was evidence of collateral facts tending to prove the facts in issue (i.e. circumstantial evidence) (Harriman at 628) even though revealing other criminal conduct. Such cases included:

(a) evidence relating to the accused and the alleged victim ("the relationship cases"), which “tends to prove how or why the conduct the subject of the charge arose or because it makes it more probable than not that the conduct occurred at the time or place or in the way alleged.” ( Harriman at 630);

(b) evidence which although it discloses criminal conduct on the part of the accused… “tends to corroborate the truth of part of a witness' evidence.” ( Harriman at 632);

(c) evidence which rebuts any suggestion of ambiguity or uncertainty in a witness' evidence. ( Harriman at 632)

133 McHugh J also held (at 633) that “[I]f evidence which discloses other criminal conduct is characterised as part of the transaction which embraces the crime charged, it is not subject to any further condition of admissibility. Evidence which directly relates to the facts in issue is so fundamental to the proceedings that its admissibility as a matter of law cannot depend upon a condition that its probative force transcends its prejudicial effect.”

Conclusion

134 In my view the evidence concerning the appellant’s behaviour when the police arrived at the property was admissible. It falls squarely within the principles enunciated in O’Leary, Adam and Player. It did not involve tendency reasoning.

135 The evidence of the appellant’s subsequent aggressive behaviour towards the police was relevant to the appellant’s state of mind at the time of the alleged earlier assault on the complainant. It was also transaction evidence. The appellant’s subsequent behaviour towards the police and his alleged aggressive behaviour towards the complainant were in very close temporal proximity.

136 The appellant’s complaint that the trial judge did not direct the jury as to how this evidence could be used is incorrect. In the course of her summing-up the trial judge directed the jury:

“The Crown also relies on the accused’s behaviour when the police arrived at the property. Ms Miner gave evidence that the accused had said to her: “ ‘if you call the cops I’ll shoot you and then I shoot the cops’ and then you will recall the evidence is that at the time the police arrived at the property, the accused said to them that he blow their heads off. The Crown relies on the fact that the accused was armed with a rifle, a bayonet and an imitation pistol and that provides support the Crown says for Ms Miner’s account that he was hunting her”.

137 I have already referred to Adam, where this Court said (at [30]) that it was not mandatory to give a direction that the jury should not engage in tendency reasoning and that whether such a direction was given in a case where “state of mind” evidence was admitted depended upon the particular case. I am satisfied that the direction the trial judge gave the jury was sufficient to direct the jury’s mind to the issue to which the Crown said it went, namely the corroboration of Ms Miner’s evidence.

138 I would reject this ground of appeal.

Ground 4:

139 In the fourth ground of appeal the appellant complained that the trial judge erred in law in not directing the jury that where they entertained a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, that must be taken into account in assessing her truthfulness or reliability generally or a similar direction.

140 The appellant referred to R v Markuleski (2001) 52 NSWLR 82 at 121 [182]; (2001) 125 A Crim R 186 at 221 – 223. In those passages, Spigelman CJ referred to the fact that it would often be prudent and sometimes necessary to assist the jury where:

“The circumstances might be such that the jury should also be instructed that if they hold a reasonable doubt concerning the reliability of a complainant’s evidence on one or more counts, whether by reference to the complainant’s demeanour or for any other reason, they must take that into account in assessing the reliability of his or her evidence in relation to other counts”.

141 The appellant submitted that some such warning as was referred to by Spigelman CJ was essential to restore “a balance of fairness” (Markuleski at [187]).

142 The Crown submitted that it was desirable, but not necessarily fatal, that a Markuleski direction be given in a word against word case. The Crown submitted, however, that this was not “a word against word case” but, rather, that there was significant evidence capable of corroborating the complainant’s evidence on each of the counts for which the appellant was found guilty. In relation to Count 3, the Crown referred to that evidence as including:

(a) Dr Nair’s evidence that the complainant had a bruised forehead, upper lip, and fractured vertebrae in her lower back and accompanying pain;

(b) Evidence from the 000 operator that at 7.45 am she had entered on her computer: “female screaming into the phone being assaulted by a male – call terminated”.

143 In relation to Count 4, the Crown said the corroborative evidence included:

(a) The complainant’s evidence that the appellant threatened to shoot her or “the cops” if the police were called and the fact that when the police arrived he threatened to “blow their heads off”;

(b) Evidence from Constable Grasso that he had received two telephone calls from the appellant that morning in which the appellant threatened to kill the complainant if the police did not get there quickly;

(c) That what the appellant told Constable Grasso over the telephone he would do to the complainant if the police did not hurry was the same threat he made to the complainant namely he was going to kill her and throw her in the dam;

(d) That when the police arrived the appellant was armed with the rifle, a bayonet and a small silver hand gun;

(e) That the appellant’s behaviour upon the arrival of the police was inconsistent with his account of being a victim of violent attacks at the hands of the complainant and sheltering in the house;

(f) That the appellant displayed an aggressive attitude to the police which demonstrated a continuation of his state of mind earlier when threatening the complainant.

144 The Crown also submitted that the evidence isolated in relation to each count overlapped so that some of the matters relevant to Count 4 were also relevant to Count 3.

145 At the commencement of the trial the trial judge told the jury in her opening remarks that the four counts were being heard together for convenience and that a separate verdict was required in respect of each. The trial judge drew the jury’s attention to the fact that the second and third counts were alternatives. She reminded the jury again in her summing-up that the counts were being tried together as a matter of convenience. The Crown submitted that, in the light of those remarks, it was clear to the jury that all charges need not necessarily result in the same verdicts.

146 The Crown also drew attention to the fact that the Crown case relied upon the complainant’s evidence and that it was “important that you look very carefully at her evidence … (and) be satisfied of the truth and accuracy of her evidence before you act on it”.

147 In written submissions, counsel for the appellant drew attention to the fact that the trial judge had directed the jury in respect of Counts 2 and 3 that unless they accepted the complainant’s evidence in respect of those counts that the injury incurred in the way she had described “you could not be satisfied beyond reasonable doubt that it was the Accused who inflicted grievous bodily harm to her”. The appellant’s written submissions stated, in relation to that direction, that “her Honour … apparently intended that her direction cover an acquittal on all counts if the jury did not accept the complainant”.

148 The Crown struggled, understandably, to identify the point intended to be made in this submission. To the extent that it appeared to complain that the trial judge had indicated that she would give a Markuleski direction but had forgotten to do so in relation to the four counts, the Crown submitted that that was not a fair interpretation of the course of the trial as revealed by the transcript. The transcript, the Crown submitted, indicated the trial judge’s direction was intended to focus the jury’s mind upon the issue of self-defence which the appellant had raised and with which she dealt in the passage I have set out above. The Crown submitted that the fact that the trial judge had not indicated that she would give a Markuleski direction was confirmed by the fact that counsel who appeared for the appellant at the trial did not seek any such redirection.

149 R v Markuleski concerned a case in which the appellant was arraigned in relation to six offences of a sexual nature. He was convicted of five out of the six counts. The case was “in large measure one of word against word, that is of the complainant against that of the appellant” (at [2]). The appellant complained that the verdicts of guilty in relation to the five counts were unreasonable or could not be supported in terms of s 6 of the Criminal Appeal Act 1912 (NSW) because of the not guilty verdict in relation to the sixth count. The appellant relied upon Jones v R (1997) 191 CLR 439.

150 In Jones a man was convicted on two out of three counts on an indictment charging him with sexual intercourse with a female child. In holding that the convictions should be set aside, Gaudron, McHugh and Gummow JJ pointed out (at 453) that “the jury’s finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment”. If that was so then, in their Honours’ view, it was “difficult … to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts”. According to their Honours there was “nothing in the complainant’s evidence or the surrounding circumstances which [gave] any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count”.

151 Their Honours were also concerned that the delay in the complaint and the lack of any corroborative evidence made it necessary for a reasonable jury to scrutinise the complainant’s evidence with considerable care.

152 In Markuleski, Spigelman CJ observed (at [31]) that “Nothing in Jones casts any doubt on the appropriateness of a jury accepting a witness’ evidence in one respect, whilst retaining a reasonable doubt about the commission of events about which that same witness is the only substantive witness”.

153 In Markuleski, Spigelman CJ conducted a comprehensive review of the cases on inconsistent verdicts particularly in the context of sexual assault cases and observed (at [185]) that case law indicated that there was a recurring difficulty where the circumstances of the case were such that if a jury held a reasonable doubt concerning the reliability of a complainant’s evidence on one or more counts, that doubt should be taken into account in assessing the reliability of the complainant’s evidence in relation to the other counts. In the light of those cases, Spigelman CJ indicated that it was “desirable” that the traditional separate consideration warning (KRM v R (2001) 206 CLR 221 at [36] per McHugh J) should be supplemented by a direction which referred to “the effect upon the assessment of the credibility of a complainant if the jury [found] itself unable to accept the complainant’s evidence with respect to any count”. While the Chief Justice said that (at [187]) some such direction should be given “as a general rule”, his Honour also observed that failure to give such direction was “not necessarily fatal” and, moreover, that “the ‘general rule’ does not apply ‘where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness’”.

154 In my view the appellant’s complaint that the trial judge failed to give a Markuleski direction should be rejected. Although it is true that Spigelman CJ did not confine his observations concerning the desirability of a direction concerning the effect of rejecting a complainant’s evidence in relation to one count upon a jury’s consideration of the other counts, this was a case, in my view, in which the circumstances were such that the facts of the case and the conduct of the trial did not suggest the need for a warning “to restore a balance of fairness”. Indeed, counsel for the appellant frankly conceded that the desirability of such a direction only became apparent after the jury had acquitted the appellant in relation to Count 1.

155 I would not give the appellant leave to raise Ground 4.

Ground 5: miscarriage of justice

156 The appellant submitted that the fact that the jury did not accept the complainant on the first count combined with its complaints about the directions in relation to Counts 3 and 4, meant that the convictions in relation to Counts 3 and 4 were “unsafe and unsatisfactory”, relying upon s 6 of the Criminal Appeal Act 1912 (NSW).

157 The Crown submitted that the finding of not guilty in relation to Count 1 could be explained by the fact that the jury could not be satisfied beyond reasonable doubt because of Mr Greentree’s evidence. It drew attention to the fact that the jury was given the traditional direction that they were entitled to accept the whole or part of what a witness said.

158 It submitted that the jury’s acquittal on Count 1 was rationally explained in the words of Winneke P and Charles JA in R v J (No 2) [1998] 3 VR 602 at 628 referred to with approval in Markuleski at [92]:

“… the jury was prepared to give the applicant the benefit of the doubt in respect of particular offences alleged on the presentment where there was acceptable evidence from independent sources pointing to the possibility that the offence had not occurred at the time or in the circumstances particularised in the relevant count. The verdicts, so viewed, do not in our opinion demonstrate inconsistency, nor do they demonstrate that the jury regarded the complainant, on matters of substance, as other than a witness of truth." [Emphasis added]

159 The Crown also submitted that the fact the jury found the appellant not guilty on Count 2 indicated it entertained a doubt about whether he intended in fact to do grievous bodily harm to Ms Miner. The Crown referred to the evidence independent of the complainant which, it submitted, corroborated her evidence. It also submitted that the appellant’s account of the events lacked credibility in significant respects, suggesting I infer that the jury was entitled to reject it.

Consideration

160 Where a complaint is made that a verdict is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice within the meaning of s 6 of the Criminal Appeal Act, the test the court applies is “whether [the court] thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.": MFA v R [2002] HCA 53; (2002) 77 ALJR 139 at [25] per Gleeson CJ, Hayne and Callinan JJ; at [52]-[58] per McHugh, Gummow and Kirby JJ.

161 The appellant’s submissions under this head amounted to the bald assertion to which I have already referred.

162 I have already set out the evidence upon which the Crown relied in dealing with the other grounds of appeal. In my view it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty in relation to Counts 3 and 4.

163 I would reject this ground of appeal.

164 In my view the appeal against conviction should be dismissed.

Sentence

165 I agree with Justice Howie’s reasons and orders in relation to the appellant’s appeal against sentence.

166 STUDDERT J: I have read the judgment of McColl JA in draft form, and I agree that the appeal against conviction should be dismissed for the reasons stated by her Honour.

167 I agree that the sentences imposed should be quashed and that the appellant should be resentenced as proposed by Howie J for the reasons which his Honour has expressed.

168 HOWIE J: I have read in draft the judgment of McColl JA and I agree, for the reasons given by her Honour, that the appeal against conviction should be dismissed.

169 The appellant seeks leave to appeal against the severity of the sentence imposed upon him. The submission made on behalf of the appellant is that the initial starting point chosen by her Honour before she applied certain discounts, to which reference will be made shortly, was excessive. It is unnecessary for me to again set out the facts upon which the applicant was to be sentenced and I gratefully adopt the summary of the Crown case contained in the judgment of McColl JA.

170 The appellant was to be sentenced for three offences, all arising from the one incident of criminality. They were as follows: maliciously inflict grievous bodily harm contrary to s 35 of the Crimes Act, the maximum penalty being 7 years imprisonment; assault contrary to s 61, maximum 2 years imprisonment; use an offensive weapon with intent to avoid his apprehension contrary to s 33B, maximum 12 years imprisonment. In addition the appellant asked her Honour to take into account three related matters arising from his misuse of a firearm and an offence of carrying a cutting weapon. As her Honour noted, the criminality of the three matters on the Form 1 relating to his misuse of a firearm was substantially reflected in the offence under s 33B.

171 In respect of the s 61 offence, the fourth count in the indictment, her Honour sentenced the appellant to a fixed term of 10 months to date from 22 June 2002 and which expired on 21 April 2003. In respect of the s 35 offence, the third count on the indictment, the appellant was sentenced to imprisonment for 3 years to date from 22 February 2003 with a non-parole period of 2 years and 3 months expiring on 21 May 2005. In respect of the s 33B offence, the fourth count, and taking into account the matters on the Form 1, the appellant was sentenced to imprisonment for 4 years to date from 22 February 2005 with a non-parole period of 2 years and 4 months to expire on 21 June 2007.

172 The overall sentence was thus one of 6 years and 8 months imprisonment with an effective non-parole period of 5 years, both dating from 22 June 2002. The date upon which the appellant will be eligible to be released to parole is 21 June 2007.

173 It is clear that her Honour approached the construction of the sentence in accordance with the practice adopted in this State following the decision in Pearce v The Queen (1998) 194 CLR 610. Her Honour determined what she considered to be the appropriate sentence for each offence taken separately and then, having considered the totality of the criminality involved, made orders providing for partial concurrence of the three sentences. The appellant submits that each sentence imposed exceeded that which was required and the total length of the overall sentence was excessive.

174 There were two matters taken into account by the sentencing judge that resulted in a discount being applied to the sentences that might otherwise have been appropriate for the offences for which the appellant was convicted. The first was the fact that the appellant had pleaded guilty to the s 33B offence at the commencement of the trial and was remorseful in respect of his conduct toward the police that gave rise to that offence.

175 The second matter was the assistance that the appellant had provided while in custody to police and the prosecuting authorities in respect of the commission of a very serious offence by other prison inmates. Although this was not a case where the appellant had given an undertaking to give evidence for the prosecution, material placed before her Honour indicated that it was expected that he would do so. Her Honour determined that, as a result of that assistance, there should be a discount of 40 per cent in respect of the sentences for the trial matters. That assistance and the plea of guilty resulted in a discount of 50 per cent for the s 33B offence.

176 There is no challenge to those discounts by the appellant: nor could there be. On the basis that this Court might be called upon to re-sentence the appellant, the sealed envelope that was before her Honour was tendered before us. The Crown, having read the material at the Court’s invitation, declined to make any submission as to the quantum of the discount.

178 The material placed before her Honour indicated that the appellant was not seeking to be placed on protection but wanted to be classified to a minimum security prison outside the Sydney Metropolitan Area. Apparently the Crime Commission, the body investigating the offence for which assistance had been given, had promised him that he would be sent to some such institution. Her Honour was initially asked to make recommendations for his protection in prison pending sentence but understood that shortly thereafter he was to be transferred to a prison for protected prisoners. At that stage Junee Correctional Centre was in contemplation. I do not believe that in those circumstances a discount of the order as that given by her Honour was justified, notwithstanding the value of the information and the seriousness of the allegation, in respect of which the assistance had been given.

179 The material raises once again the issue of what mitigation of a sentence should be made on the basis that the offender might spend all or some of his sentence in protective custody. The matter has been recently considered in R v Totten [2003] NSWCCA 207 and R v Durocher-Yvon [2003] NSWCCA 299. It can no longer be assumed that a prisoner, by reason of the fact that he will serve his sentence on protection, will find prison life more difficult or onerous than other prisoners in the general prison population or that the prisoner will be deprived of amenities or opportunities for self improvement courses and education. The present is another instance where a sentencing judge has presumably taken into account in favour of the offender the fact that he will serve his sentence under the harsh conditions and deprivations of protective custody, but that has not proved to be the case. It is an example of the difficulty of a sentencing court taking into account possible executive or administrative action in respect of a prisoner’s custody when predicting how a sentence will be served. Although in Durocher-Yvon the Court indicated that a sentencing judge was entitled to assume that an informer would find himself in strict protection for the best part, if not the whole, of his sentence, that assumption would have proved to be erroneous in the present case.

180 As was recognised in Totten, the court is placed in a difficult position. On the one hand, the sentencer should take into account the conditions of the prisoner’s custody where it appears that they will be unduly onerous because of some matter particular to that prisoner. This requires that, at the time of sentence, the court make some prediction about the nature of the custody that will be endured by the prisoner. On the other hand, the courts should now be aware that assumptions or predictions, which have been made in the past about the nature of an offender’s custody because, for example, the offender has given assistance to the authorities, no longer hold good. But the vagaries of prison life are such that it could never be confidently assumed or predicted that a prisoner will serve the whole of his sentence in any particular type of custodial arrangement.

181 It is unnecessary in the present case to do more than refer to this conundrum without trying to solve it, but if this Court is required to re-sentence the appellant, it cannot ignore the fact that he is not apparently serving his sentence under any more onerous conditions than any other prisoner in the general population and is unlikely in the future to do so. To the contrary, we are asked to take into account the progress he has made in prison by undertaking courses to address those problems that might have given rise to the present offences. Although the assistance proffered, and so far given, is of considerable benefit to the community in relation to a very serious offence, the Court cannot overlook the fact that the detriment suffered by the prisoner as a result is not as significant as might have been assumed in the past or with other prisoners.

182 A further matter that arises in this regard is the fact that the prisoner has never been required to give a formal undertaking as to future assistance. However, he gave evidence before Judge Hock that, at the date of sentence, he still intended to assist the authorities and that this assistance would involve his giving sworn evidence at a trial. I would be prepared to accept, as her Honour did, that this was in effect an undertaking to give evidence, but with respect I do not think that it is a satisfactory way of dealing with the matter. It is of some concern to me that a discount of 40 per cent was given, part of which no doubt was for future assistance, but the prosecuting authorities did not seek to have the appellant give an undertaking as to the evidence he was prepared to give. It is not clear whether the appellant understands that a failure to give future assistance by way of evidence in accordance with the statements he has made, would result in the loss of some part of the discount he has been granted by the trial judge.

183 Be that as it may, the appellant’s challenge is principally to the starting point that her Honour chose before applying those discounts. The sentence for the assault, before the application of the discount for assistance, was imprisonment for about 16 months; that for the s 35 offence was imprisonment for 5 years; and that for the s 33B offence imprisonment for 8 years. The written submissions on behalf of the appellant contend that her Honour sentenced the respondent to a total sentence of over 14 years and 4 months against an overall maximum penalty for the three offences of 21 years. This calculation, however, overlooks the fact that there was an overlap of five months between the sentences by reason of them being made only partially cumulative, so that the overall undiscounted sentence was, therefore, one of 13 years and 11 months.

184 Her Honour appropriately described the offences as “extremely serious”. She noted that the injury to Ms Miner was a very painful one and resulted in her requiring the aid of a walking stick for about 7 months after the attack. There was no evidence as to how that injury was inflicted but it required a significant amount of force being applied to the victim’s back. The jury’s verdict meant that the appellant had applied that force in circumstances when the victim was unable to ward off the blow or otherwise protect herself. Even if one assumes that the injury was inflicted recklessly rather than intentionally, it was still a serious instance of the offence notwithstanding the appellant’s intoxicated state. By the date of the sentencing proceedings the victim had returned to Canada and there was no victim impact statement before the court as to the state of her injury at that time.

185 Although the s 61 offence did not involve any physical touching of the victim, it was a grave example of an assault because it involved a significant threat of violence to the victim for a not insignificant period of time. Although the “hunting” of the victim was in all probabilities merely intended to scare her, there was no doubt that it did so to a very substantial degree at a time when she was suffering from her painful back injury.

186 It is unnecessary to emphasise once again the serious nature of the s 33B offence or to refer to decisions of this Court that have emphasised the importance of general deterrence when sentencing for offences directed at police officers who are simply carrying out their duties. The offence was aggravated by the fact that, as a result of the offence, one of the officers suffered from a Post Trauma Distress Disorder that left him permanently disabled so far as his police duties were concerned. Her Honour described this as “catastrophic” for the officer.

187 It was clearly a serious example of the offence notwithstanding that the firearm could not be discharged. The officer was obviously not aware of that fact and the rifle was pointed at him for a significant period. The officer was placed in the highly stressful position of being confronted with the possibility of having to shoot the appellant in order to defend himself from what he perceived as a real and present danger to himself. It must be every police officer’s nightmare that he or she will attend a domestic disturbance and find one of the occupants brandishing a firearm in his or her direction. Persons who put police officers in that position must expect the courts to react with severe sentences.

188 The appellant was aged 39 years at the date of sentence. He has a criminal record from May 1985 for firearms offences and was sentenced in 1991 to imprisonment for 3 months. The sentencing judge noted that this sentence did nothing to deter the appellant from further offending by the misuse of firearms and that specific deterrence was a relevant sentencing consideration. There was also a breach of a domestic violence order in 1991 for which the appellant was placed on a bond. However, as her Honour noted, otherwise his record is of little relevance and she assessed the appellant’s prospects for rehabilitation as “reasonable”.

189 There was a pre-sentence report before the sentencing judge. It indicated that a person, who had previously been in a de facto relationship with the appellant, stated that he had never displayed violence toward her and she was surprised by the commission of the offences. Under the heading “Factors relating to offending” was the following:

Attitude to offending: [The appellant] stated that he accepts responsibility for his actions and acknowledged that alcohol had been a significant factor in his offending behaviour. In explaining the offence, [the appellant] stated that at the time he and his ex-wife were experiencing marital problems, claiming that she had an affair with a work colleague. [The appellant] stated that his doctor put him on anti-depressant for depression. On the day of his offending, he stated that he had not taken his medication for over a week and to cope with the stress he consumed alcohol. He had not consumed alcohol for the past ten years and when he did so things got out of hand. He said [he] now regrets his behaviour.

The officer reported that her inquiries revealed that the appellant was normally a social-drinker and that “his pattern of alcohol consumption is rare”.

190 The appellant gave evidence before the sentencing judge. He said that at the time leading up to the commission of the offences he had not been taking anti-depressant medication because the victim had hidden his prescription and he had thus turned to alcohol. He had not consumed alcohol for about 8 years before the offences were committed. He said that, when released from custody, he intended to undertake a course in veterinary science. Before his arrest he had made application to undertake a TAFE course in this field. He said that he regretted his behaviour that night and, while he accepted that his conduct resulted in a serious injury to his wife, he denied inflicting the injury or assaulting her.

191 The sentencing judge accepted the appellant’s evidence as to his alcohol consumption and indicated that she was treating it as a mitigating factor. Although her Honour found that there were special circumstances in respect of the last sentence by reason of it being accumulated on the other two sentences, she determined that no lesser non-parole period than that she fixed, a period of five years, would be sufficient to reflect the objective seriousness of his conduct.

192 In a matter such as the present where the only complaint is that the sentence is manifestly excessive, the Court must act on its own assessment of the sentence and to that extent it must be a subjective reaction to the sentence imposed having regard to the objective features of the crime, the subjective features of the offender and the purpose of punishment; being ultimately the protection of the community. However, the Court does not substitute its own assessment of the appropriate sentence for that made by the sentencing judge unless it comes to the view that the sentence was beyond the sentencing judge’s discretion. That is not a conclusion that should be lightly reached and more than lip service should be paid to the fact that it is the sentencing judge’s task to determine the weight to be given to the various aspects of sentencing in a particular case and the relevant facts that impinge upon that determination. The deference to be paid to the sentencing judge’s discretion and fact-finding applies both to the head sentence and the specification of the non-parole period.

193 In the present case I am left with the very strong impression that the overall starting sentence is too high. Whether this is because the individual sentences are too severe or there was insufficient concurrence of the sentences to reflect the fact that each of the offences arose from a single incident is probably not important. But in a case where her Honour accepted that the criminal conduct was as a result of the appellant’s intoxication and that this was a mitigating factor, a total sentence of almost 14 years as against a statutory maximum of 21 years seems to me, with respect, to be outside the discretionary range for a single episode of criminality, especially when it is accepted that it arose when the appellant was uncharacteristically heavily intoxicated.

194 I have remarked that the offences were serious but none of them required an undiscounted sentence towards the top of the range, even if each offence was considered in isolation. Yet the sentences imposed for the s 35 offence and the s 33B offence were at the higher end of the available discretionary range having regard to either the maximum sentence provided by statute or the actual range of sentences imposed by the courts and as disclosed in the available statistics. In addition there was, with respect, an inadequate amount of overlap between the individual sentences notwithstanding that they were all part of the one criminal enterprise arising from a relatively short period of time. The overall undiscounted sentence is, in my respectful opinion, outside the discretionary range open to her Honour. The resulting sentence is also excessive notwithstanding the overly generous discount applied to the trial matters.

195 In my view the sentences are manifestly excessive and this Court should intervene. The discount for the trial matters, however, should have been about thirty per cent, and half of that due to the promised future assistance. The discount for the s 33B offence should remain at 50 per cent with 20 per cent due to future assistance.

196 In my opinion the sentence for the s 61 offence should remain as it is. I believe that the starting sentence of 16 months was appropriate and although the discount was excessive, it should not be varied so as to have the result that the sentence is increased. The sentence, therefore, remains at 10 months.

197 The starting sentence for the s 35 offence should be 4 years and, with a discount of 30 per cent, results in a sentence of 2 years 10 months.

198 The starting sentence for the s 33B offence, taking into account the matters on the Form 1, should be 6½ years reduced to 3 years 3 months by reason of the 50 per cent discount.

199 The overall sentence should, therefore, be 5½ years with a non-parole period of 4 years. This preserves approximately the statutory relationship between the overall sentence and the non-parole period and allows the appellant a parole period of 18 months which, in my view, is the appropriate period for the applicant to be on parole if he is released at the expiration of the non-parole period.

200 I propose, therefore, that the sentences imposed by her Honour for the s 35 and s 33B offences be quashed. In respect of the s 35 offence the appellant is to be sentenced to imprisonment for a fixed term of 2 years and 10 months that sentence to commence on 22 December 2002 and to expire on 21 October 2005. In respect of the s 33B offence, the appellant is sentenced to imprisonment for 3 years and 3 months to commence on 22 September 2004 with a non–parole period of 1 year and 9 months to expire on 21 June 2006 the date upon which the appellant is eligible to be released to parole.

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Last Modified: 04/16/2004